May 18, 2006

Said Arlen Specter to Russ Feingold, who then walked out of the Senate Judiciary Committee meeting. The subject was the constitutional amendment banning same-sex marriage, which the committee approved.

"I don't need to be lectured by you. You are no more a protector of the Constitution than am I," Judiciary Committee Chairman Arlen Specter, R-Pa., shouted after Sen. Russ Feingold declared his opposition to the amendment, his affinity for the Constitution and his intention to leave the meeting.

"If you want to leave, good riddance," Specter finished.

"I've enjoyed your lecture, too, Mr. Chairman," replied Feingold, D-Wis., who is considering a run for president in 2008. "See ya."

If I say I think Feingold won that exchange, are you going to think it's just because I'm opposed to the amendment?

IN THE COMMENTS: Doug notes the phrase "You are no more a protector of the Constitution than am I" and asks "Could it be that Senator Specter is admitting that the Senate has done a pretty crappy job of protecting the Constitution over the years?" Very astute! In fact, the expression "You're no more of an X than I am" is normally used as a way of saying "You're not an X at all." The speaker is assuming that he's not an X and everyone knows it.

Its really an arguement about bring it to the entire Senate, where it will be debated and voted down and election year positions can be stated with all clarity of John Kerry's 2004 platform. Really doesn't hurt either of them to act so righteous, they had nothing to lose, the deal is done.

Doug notes the phrase "You are no more a protector of the Constitution than am I" and asks "Could it be that Senator Specter is admitting that the Senate has done a pretty crappy job of protecting the Constitution over the years?" Very astute! In fact, the expression "You're no more of an X than I am" is normally used as a way of saying "You're not an X at all." The speaker is assuming that he's not an X and everyone knows it.

That makes me think, oh yeah! It was McCain-Feingold wasn't it? I had forgotten his role in that.

Indeed. That Senator Specter refrained from decking Feingold alone makes him the winner in the exchange.

If there's a "winner" here, it's a Pyrrhic victory at best. They both come off looking awfully childish here. Part of that, in Specter's case, though, is the way it's framed:

"I don't need to be lectured by you. You are no more a protector of the Constitution than am I," Judiciary Committee Chairman Arlen Specter, R-Pa., shouted after Sen. Russ Feingold

Now, it's "after Feingold declared his opposition," yes, but followed by "good riddance," and Feingold running away with "See ya!" it makes it sound like Specter is bellowing it in impotent rage, as Feingold escapes his clutches.

Ever seen the male sea lions on the rocks west of San Francisco? They battle for position just the same way. It's a testosterone thing.

As far as the issue, (gay marriage,) I'm strongly for a Federation, with state's rights uppermost, but in this case, I think we need one rule across the board. "Hey if we move to San Francisco we're legal, but if we move to Kokomo, we're not!" I think not.

Part of Spector's responsibility as Chairman is maintaining order. Feingold knows this. His bad faith grandstanding was a personal affront to a senior senator cloaked with authority. Feingold knew this, too. He was counting on it.

Althouse...If your against the Amendment, how then would you craft an Amendment to make sure that a Court in Mass. cannot decide the definition of marriage for the people of Wisconsin

We have this law called the DOMA which says exactly that. Constitutional challenges to the DOMA have held up, as the full-faith and credit clause has never been construed to include marriage. Most states choose to recognize other states marriages, but there's no reason they have to. I'll be sighing laboriously in the corner and shaking my head, as even a cursory knowledge (like mine) of the topic should be good enough to understand that.

"YOU are no more a protector of the Constitution than am I" is a comparison between the protector abilities of the people. Same with if the emphasis is on "more."

However, if there is no emphasis anywhere, or if there is emphasis on "protector," then Specter could be saying that neither he nor Feingold are very good protectors. I find this unlikely in the extreme.

As far as the substance of gay marriage, I, too, believe it is an issue best left to the states. You folks who want "one rule across the board" have been drinking too deeply at the trough of Griswold for too long.

Can/could a 19-year-old kid bring beer from Louisiana to Arkansas and drink legally? Can/could a 14-year-old drive a car from Kansas to Missouri?

I also note that states have put this issue to a vote and every state -- even fairly liberal states -- have seen it massively defeated. The only way it has been implemented, just like every vital "right" that lieft-liberals feel compelled to impose upon more conservative populaces and communities, is by judicial fiat.

Tim, they say DOMA will prevent that. However, what if your wrong and the Supreme Court strikes it down. The supporters of traditional marriage know that if the Supreme Court strikes it down the game is nearly up. How long would it take to get an amendment passed in the interim. Would gay marriage be legal for the interim period??? I would imagine that everyone would get "married" at that point It is ridiculous be able to use a constitutional amendment to invalidate previously legal contracts. That is something that happens in Banana Republics, not here.

I think the "Your no more a protector than I" is a solid slap on Feingold. Feingold's view on what the constitution has no more value or superiority than Specter's. What has happened is that 5 judges have decided that gay marriage is okay in Massachusets. No vote, no public debate and then a decision the citizens make. Just 5 people think its a good idea. The amendment says lets get 2/3 of a divided congress to vote on the amendment, if after all the debate it passes the congress then lets have 2/3 of all the states (34 states) to each debate it in their legislatures and approve it. This is a huge hill to climb. Its the way that a change saying gay marriage is a constitutional right (the 5 votes in MA) should have been done. For Feingold to argue against it is fine. To rant that going through the constitution process for amendment is wrong.

I also note that states have put this issue [same sex marriage] to a vote and every state -- even fairly liberal states -- have seen it massively defeated. The only way it has been implemented, just like every vital "right" that lieft-liberals feel compelled to impose upon more conservative populaces and communities, is by judicial fiat.

That's not quite true. The California legislature passed a bill that would grant full marriage equality and such would be the law today but for the Governator's veto. Connecticut just passed a very broad law allowing same sex civil unions. Massachusetts and Vermont have had their same-sex marriage/civil union regimes imposed by judicial fiat, but the populations of those states have not managed to get sufficient numbers together to accomplish a constitutional amendment to overturn those decisions and are generally considered lacking sufficient political will to do so, despite an aggressively anti-gay marriage governor in Mass. And, a new round of bills are being considered in a number of states like New York and California, which are expected to have new Democratic governors elected in 2006. The same sex marriage debate got rolling in the courts but now political support is growing. Considering same sex marriage has only seriously been on the political radar screen for 15 years or so, I'd say progress has been decent, if frustrating for same sex couples in the meantime.

Joseph -- When I speak of a vote, I am naturally speaking of a referendum, not the vote of a small group of judges or a group of state legislators. When a court does something, or when a legislature does something, it's not a popular referendum.

I could have been clearer on "put this issue to a vote," though I think most people would infer a referendum. As such, your argument is akin to:

Seven Machos: There is no corn in that field.

Joseph: You are not quite right. Corn is a vegetable, like onions and soybeans. Look at all the onions beans in the field.

"Hey if we move to San Francisco we're legal, but if we move to Kokomo, we're not!" I think not.

I don't see why not. The social reality of marriage is quite distinct from the legal formality of marriage. In the past, I suppose, whether you were married or not might be a meaningful distinction for a crime of fornication or somesuch (i.e. a crime that a married couple whose marriage was not recognised under a different state's law would almost certainly commit), but nowadays, it's only things like taxes, estates, and evidentiary privileges, none of which seem to implicate the same concern.

After all, a man can be married to many wives in Saudi Arabia, but when he comes here, to our backwards, barbarian land, he finds that suddenly he is married to at most one of his wives (which one I have no idea -- how does the INS sort that out?).

He was full of conceit, acting like he's morally superior or something.

Do we actually know that? I don't think we do -- we only infer it from what we know of people we think are like Feingold (and like to be conspicuous in their moral preening), and perhaps how Feingold has behaved in the past. But we may be wrong.

I bet Feingold is sitting in his office, stewing, thinking of all the awesome comebacks he could have used.

Oh well, Russ. You can take solace in the fact that you will get mentioned in several prominent newsweeklies as a "compassionate, intelligent liberal" who "puts the needs of people first" before you get your ass handed to you in the 2008 primaries.

Seven, you're right that, when put up for a simple referendum, voters have not supported granting marriage rights to same sex couples, but that's not how the overwhelming majority of laws are made. Voters also cast votes for legislators whose job it is to write and pass laws, and those legislators, like their constituents, have proven increasingly sympathetic to same sex marriage.

My impression was that the point of your comment ws that same sex marriage isn't going to become the law through the political process, as evidenced by those referenda. My response is that it is happening politically, albeit slowly, and the legislators who are making it happen are not being kicked out of office by their constituents as a result.

Very strange that Feingold would say he cares about the Constitution. At least McCain admitted his disdain for free speech.

And gays and lesbians have the exact same rights of marriage as straights- to marry someone of the opposite sex. I think same sex marriage should be legal, but it isn't an equal rights issue, and the Constitution has nothing to do with it.

In perhaps a dozen districts across Vermont, legislators who voted for the law face challengers in Tuesday's primary.

Most of those being challenged are the few Republicans who voted for the bill, which passed by just 11 votes and WAS REQUIRED BECAUSE THR STATE SUPREME COURT ruled gay couples were being unconstitutionally denied the benefits of marriage...

http://www.cbsnews.com/stories/2000/09/06/national/main231156.shtml

You keep chanting that stuff about political process and about how average Americans in average communities want gay marriage, and I'm sure it will come true.

A distinction - civil union is not marriage. I have no problem with gays entering a legally recognized civil union with all the rights of married couples. But marriage is an ancient institution of union between a man and a woman, usually if not always in the context of religion. Marriage predates the state, and if the state decides to recognize marriage, then it owes some deference to the ancient definition thereof. A "marriage" of same sex couples is a travesty of marriage. You can call the game of football, baseball; it does not make it baseball. I think it is not mere semantics.

"All the pro-gay lawmakers were reelected and two openly gay lawmakers were newly elected to the legislature. Opponents favoring the ban, including state governor Mitt Romney, sought to foment the kind of backlash experienced in Vermont... but they were unsuccessful."

Seven Machos, the best you can do is quote a story that's over five years old? The last I heard, political opposition to civil unions in Vermont has essentially disappeared. If not, I trust you can find a more recent reference.

I'd say we need to look to the future. 20 (or 50) years from now, when same sex marriage is legal in most places do you want to be remembered for standing up for equality or for hanging back in favor of discrimination?

If I remember correctly, the majority of Americans are cool with gay marriage, as long as they're called something else, like civil unions. Why not just rename 'civil unions' something like 'marrage', 'marridge' or 'mariage' or some other term that is pronounced the same yet is spelled slightly differently? That way the glorious and holy sanctity of 'marriage' is preserved and gay Americans are still afforded the same benefits as straight Americans.

Danny: That wasn't meant to be snarky. I'm sympathetic (in my contrarian way, that is) to the idea that the institution of marriage isn't so very important any more. Not insofar as government is concerned, anyway.

My memory may be fading, but IIRC Reagan argued against the Equal Rights Amendment saying the equal rights the amendment was intended to protect were already protected. And that society would eventually realize it.

Is Specter admitting the amendment goes against the spirit of our Constitution? Seems so. It's sad my party is making it harder and harder for me vote for them.

Bissage: I am concurrently intrigued at the idea, though it obviously has no chance in ____. I think if you want to protect an ancient and holy bond, it should be through religious institutions which have a much longer shelf life than governments. More can be found on Slate.

Madisonman:The judges decided that prohibiting gay marriage violated the state's Constitution. Was there a moral judgement ("It's ok!") in that decision?

One striking thing about the opinion is that they decide it under a rational basis standard. Yes, the super-deferential one. I.e. they try to argue that all objections to gay marriage are irrational. They do so using some characterisations of marriage which are, in my opinion, rather questionable (I have gone on about this before in the big gay marriage threads here), and avoid any real engagement with the issues raised by objectors

It's not that they are stating a moral judgment upfront -- everyone knows that's a no-no in American jurisprudence today -- but that they are masking a moral judgment in specious language.

Now, it may be that Massachusetts law has evolved a different and much less deferential rational basis standard than the Federal system, in which case the reasoning in Goodridge may not be quite as specious as it seems at first blush. I don't know MA constitutional law, after all. But I don't see any particular reason to believe that, from the opinion itself.

I'm ignorant of the workings of law, but I heard one analysis of the Mass. decision that said part of the judges' reasoning was a large body of case law in that state affirming the equality of gay and straight parents.IIRC the line of reasoning was roughly: if gay couples equivalent to straight couples as parents (and according to Mass. law they are) they should be qualified to get married like straight parents. I have no idea about the accuracy of that claim (or the legal status of gay couples as parents in Mass.) FYI only.

back onto the original topic: I'd need to hear the exchange in question to venture a more definite opinion on how I think each fared in the exchange. In spoken English the words are less important than the melody they're set to.

That said, on paper, Feingold comes off slightly (very slightly) better. Specter essentially says "neither one of us are protectors of the constitution" (I can't think of any possible way of saying what he said that wouldn't mean that). I would assume that's not what he meant, and worse, there's no way for him to fix it gracefully.

The initial part of Feingold's response is polite and puts Spector into a nice little double bind. Any reaction is going to seem wrong. A quick change of subject (as far as that's possible) is the only face-saving measure.

But .... the 'see ya' was uncalled for and a little juvenile. The only way it _might_ be acceptable is if it was delivered with a charming smile as Feingold sat down making it clear he wasn't going anywhere. Then none of Feingold's options are going to be fun. He can't thank him, can't correct him and can't ask why he's not left yet (unless he really doesn't mind seeming rude and or foolish). Again his best bet at that point is trying to pick back up where he was before he said that strange thing he said.

If Feingold actually left, then he's a fool. Never leave the room while decisions are still being made.

That AP artilce referenced is pretty short on specifics but one of the two reasons attributed to Feingold's ire is that the hearings were held in a private chamber rather than in the normal chamber that accomodates the public. All supposition here but if Feingold is walking out to protest the secrecy of what he believes should be public hearings, its a more principled departure - i.e., I won't participate in private hearings and so I'm leaving. Or he could just be acting like a baby. Perhaps a bit of both.

I'm ignorant of the workings of law, but I heard one analysis of the Mass. decision that said part of the judges' reasoning was a large body of case law in that state affirming the equality of gay and straight parents.

You may be correct; however, that addresses at most one prong of the state's argument in Goodridge, and as far as I can see, appears in the opinion only as follows:

In any event, my sense here (without checking to see whether the cited cases are decided under a constitutional provision, in which case everything is different) is that they are taking judicial interpretations of past legislative enactments -- evidently referencing the "best interests" of the child in custody cases -- and using those judicial interpretations to argue that the legislature's own interpretation (are propounded by the state) of what the best interests of the child are in a different context is wrong. Which . . . does not seem quite proper to me. On more than one level.

So Feingold said he was going to take his ball and go home, Specter told him to beat it, and Feingold actually took his ball and left? I think MadisonMan got it right; the real loser here is the prestige of the Senate. We have ignored one half of Bismark's warning; We do not invite television coverage of sausage factories, yet C-SPAN continues to blacken the reputation of our political institutions by beaming the full gory details into our homes, and worse yet, encouraging precisely this sort of grandstanding.

This is what those of you who want cameras in the Supreme Court think is an experiment worth repeating?

My point was that the judges just didn't show up one day and say "All gays can get married now! It's all ok!" That's how I interpreted yetanotherjohn's comment. Their decision followed previous decisions in a manner that might be described as logical -- it's probably not the only path that those previous decisions foreshadowed, but I suppose it's the one the judges thought most in keeping with their Consitution.

Anyway, given the subsequent evolution of the Massachusetts legislature, the argument that these judges are out of step with that state doesn't ring true to me.

nunzio, from your lips to the voters' ears, I hope. Just Say No to Senators becoming Presidents!!

If he gets the nomination, expect to see this clip used repeatedly by the GOP in dozens of clever and creative ways. Will he get the nomination? Better him than Biden; I'll take a child over a moron any day, and unlike Biden, Feingold has some good qualities that even I can appreciate. When there's no TV cameras around, I'm told, he actually displays some of them.

"If you're against the Amendment, how then would you craft an Amendment to make sure that a Court in Mass. cannot decide the definition of marriage for the people of Wisconsin"Such an amendment would be redundant; absent poor wording in your state's constitution, there is no power for one state to thusly affect another. And that's even without DOMA.

"I'd say we need to look to the future. 20 (or 50) years from now, when same sex marriage is legal in most places do you want to be remembered for standing up for equality or for hanging back in favor of discrimination?"

I'd say we need to look to the future. 20 (or 50) years from now, when the First Amendment has been entirely gutted by legislation like McCain-Feingold; do you want to be remembered for standing up for viewpoint-equality or for hanging back in favor of hate speech?

Just to comment on the comments regarding judicial imposition of gay marriage - one thing that you have to keep in mind is that the Massachusetts Supreme Court was not interpreting (so far as I recall) the Federal constitution. There is no right to gay marriage lurking in the Federal constitution; indeed, there is no right to straight marriage lurking in the Federal Constitution. However, there may well have been one lurking in the Massachusetts Constitution. I think it's a grave mistake to assume that just because a judge X in state Y rules that the state's constitution forbids gay marraige, that doesn't necessarily mean that judge X is a judicial activist: it depends entirely on what state Y's constitution says.

The context that is left out of the article is that Feingold left because an amendment to the Constitution was being debated in a closed room instead of the normal, open-to-the-public room and because something as important as a Constitutional amendment was being rushed to a vote.

Today's markup of the constitutional amendment concerning marriage, in a small room off the Senate floor with only a handful of people other than Senators and their staffs present, was an affront to the Constitution. I objected to its consideration in such an inappropriate setting and refused to help make a quorum. I am deeply disappointed that the Chairman of the Judiciary Committee went forward with the markup over my objection. Unfortunately, the Majority Leader has set a politically motivated schedule for floor consideration of this measure that the Chairman felt compelled to follow, even though he says he opposes the amendment.

"On the planet Maturia, we have much to teach you." (Lisa Kudrow, 'The Opposite of Sex')

Good one, Russ. I'm sure your going to get plenty of media time and the adulation of the Kossacks with your little hissy fit. Meanwhile, you've pissed off the committee chair who may be a Republican, but is hardly a creature of the Christianist homo-hating far-right.

Who knows, Specter might actually be a valuable ally in getting this trash consigned to the dustbin of history where it belongs. (Oh, I may be gay but I'm also a real conservative who believes in the separation of powers. And does the GOP believe in 'State's Rights' or just when it's ideologically and electorally convenient?)

I think it would do both men good to remember their "big swinging dick" posturing pales into insignificance against the impact the FMA (remember that?) could have on the lives and families of untold numbers of gay and lesbian citizens.

Geoduck:"If the concept of liberty doesn't include the right to marriage then what in the world is it?"

The due process clauses of the Fifth and Fourteenth Amendment, which are the constitutional representations of rights at common law dating back to the Magna Carta ("No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land") require the due process of law before government may execute you (that is, take away your )life), jail you (that is, take away your liberty) or fine you (that is, take away your property). By its own terms, it is a procedural guarantee, and I would add, it is not "merely" a procedural guarantee, it is a vitally important procedural guarantee. As a society, we have learned to take for granted those procedural protections, hence the desire to find more "important" rights to be protected by the language.

Gabe - It's not going to pass, so this is all just posturing. The difference is that Feingold wants to run for President while Specter wants to serve out his term and reture; thus, the person who conjoins posturing with venality loses. That would be Russ.

I understand what you are saying, but a Constitutional amendment shouldn't be debated in a closed room while the hearings steriods in major league baseball are in the full light of day.

Also, on due process, procedural and substantive, the Court has read a right to be free from encumbrances on marriage as so fundemental as to be protected by the constitution - I am referring of course to Loving. Of course, there are major differences, most importantly that the law against miscengation was viewed under strict scrutiny because race is a suspect classification, but it is imprecise to imply that marriage has not been viewed to be under the protection of the Constitution.

That said, it would be a major leap to imagine that this particular court would read that particular right to marriage into the Constitution...

Also, I agree completely with the distinction you made between the federal and MA Constitutions and the distinctions between judges and bad judges.

Finally, I'm not sure where in the thread this came up, but there has been a negative backlash in MA; the first time a proposed Constitutional amendment came before the legislature, it was narrowly defeated. when it came up again, it was defeated by a larger margin. My MA friends note that the most remarkable thing about gay marriage is just how unremarkable it is.

Also, in CT, the drive to codify marriage as between a man and a women in the state Constitution has failed miserably.

Simon: There is no right to gay marriage lurking in the Federal constitution; indeed, there is no right to straight marriage lurking in the Federal Constitution.

What you say may be your view, but keep in mind that there is in fact a fairly long line of precedent describing marriage as a fundamental right. See discussion over at this thread, of cases such as Loving v. Virginia.

Now, if I got to do it all on a blank slate, I'd be symapthetic with the argument that there is no SDP, only PDP. Regardless of what "liberty" means, this would preclude invalidation of the statute based on its substantive content.

However, that's not necessarily the end of the game for a right to marriage. I for one would be sympathetic to the argument that the P or I clause protects certain deeply traditional unenumerated rights, and that one such right is marriage. Ergo, I think it might be unconstitutional for a state to outlaw all marriages (including private civil contracts). Of course, we aren't going to resolve that disagreement here, but I just wanted to remind you that there are decent arguments for a Constitutional right to straight marriage.

All of which is irrelevant to the gay marriage question -- there being no presently established broadly recognized right to a gay union.

But as I've said before, I think there are legitimate equal protection concerns at play.

The due process clauses of the Fifth and Fourteenth Amendment, which are the constitutional representations of rights at common law dating back to the Magna Carta ("No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land") require the due process of law before government may execute you (that is, take away your )life), jail you (that is, take away your liberty)

Oh yes - I quite agree. However, I think implicit in liberty are rights such as the right to marry.

Let's say the British King forbade marriage to everyone but a few nobles. (Perhaps the King decided that a huge harem was a great idea. Or perhaps he decided to ban marriage and create a utopian community filled with no marriage in which all women were communal wives. Or any other nutty idea you can think of. For hypothetical purposes, pretend the King has gone insane.)

Ha - I betcha he would have been killed right quick. A free Englishman (ie- liberty) would not put up with that crap.

Gabe -- I think you miss my point. Gay people can marry any gay person they want. They can have a ceremony, make life-long promises, have adopted children, write wills leaving their stuff to each other.

Gay marrige simply is not illegal.

The state has an interest in endorsing heterosexual marriage because those arrangements tend to make happier families and lead to better social outcomes (less crime, for example). Further, the state has an interest in monitoring the transfer of property.

There is a lot more to be said here but, basically: (1) gay marriage is not illegal the way miscegenation was or having sex with your sister is, and (2) the state has no place endorsing OR NOT ENDORSING gay marriage.

Must the state have its filthy paw in everything? For the left-liberal, I guess it must. What will be foisted upon us (because the elites know better) or taken away from us (because the elites know better) next?

Bissage -- I am conflicted about gay marriage, or as my very good friend would say, "I struggle with it," and he would emphasize: "STRUGGLE." I once told him he should write a book: "My Struggle," but he didn't get the reference, and I didn't want to push it.

Anyway, I have no problem with gay marriage. I do feel awful for these adopted kids because I know life is going to be difficult for them, but I also know that, as adoptees, they may have faced hardships in any case. I also know that many, many people very much do not want the state to endorse gay marriage. Those people's views are not bad or evil; there is no Jim Crow system relegating gays to second-class status.

Ultimately, this issue is a political loser. I mean, my guess would be that 70 percent of all Americans have no desire that the state support gay marriage. What we are going to end up with, if we aren't careful, is laws against gay marriage. In their quixotic quest to force a confrontation and to secure civil rights which they are already have, gay advocates could very well end up losing those very civil rights.

Re: "In their quixotic quest to force a confrontation ...gay advocates could very well end up losing those very civil rights."

It is an oft-repeated leftist method to claim moral primacy for their position, and demand that the government Do Something About It. All those opposing their vision are, of course, Evil.

But as with abortion, all will not be well and good after simply declaring judicial victory. In the case of gay marriage, opposition remains high in much of the US. Efforts to force the issue have already produced a backlash, much like the recent illegal immigrant marches.

The result of the march? A fence. The result of coerced gay marriage? Making it illegal.

Is there a word for repeatedly getting the opposite result to that intended? Cluseaunian? ThreeStoogified? Marxist?

I guess I'm just saying that, privately, people have come to a nice arrangement regarding gay marriage. The people who really hate it don't have to see it; gay people are free to marry.

About the only way to screw up this lovely de facto detente is this stupid in-your-face approach.

As an aside, it's very similar to gays in the military. OF COURSE there are gays in the military and OF COURSE the top brass needs to downplay this for a host of reasons. Reasonable people understand this. But, no. The in-your-face crowd had to have Clinton make a big to-do about it, and it cost the great pragmatician hugely.

The in-your-face crowd had to have Clinton make a big to-do about it, and it cost the great pragmatician hugely.

I saw it not as the in-your-face crowd, but more of the why not acknowledge what actually exists crowd. As you say, there are gays in the military. Why not let them do their jobs without fear of witch-huntery? Wouldn't the armed forces ultimately be stronger as a result?

BTW, I heard this morning that one reason Feingold was miffed was that the hearings he stalked out of weren't televised. I'm guessing he wanted each Senator's words potentially beamed to the general public.

Gabe,", on due process, procedural and substantive, the Court has read a right to be free from encumbrances on marriage as so fundemental as to be protected by the constitution - I am referring of course to Loving. Of course, there are major differences, most importantly that the law against miscengation was viewed under strict scrutiny because race is a suspect classification, but it is imprecise to imply that marriage has not been viewed to be under the protection of the Constitution."

Well, Loving wasn't purely (or even primarily) a substantive due process case, it was an equal protection case. As you say, race is a suspect classification, but that terminology (at least, to my understanding) is part of equal protection jurisprudence, not due process. As in Trop, by curious coincidence, Part I of the opinion adequately disposes of the case on equal protection grounds, while Part II (in Loving's case, briefly) goes into a rationale I do not agree with and that I think to be both superfluous and wrong.

Thus, Loving is one of those big Warren Court cases where I think the court actually got the right result, but got there by reasoning I can't agree with, in part or whole. My understanding is that Warren worked hard to make Brown unanimous and free from concurrence or dissent, and I can appreciate and understand why. So in the circumstances, I might have been willing to suck it up and sign on to the opinion in Brown, even though I think it's got some serious problems, because of the fundamental importance of the result and the imperative for a unified court is sometimes pretty strong. I imagine that Scalia and Thomas had similar feelings signing on to the per curiam in Bush v. Gore.

Thus, I don't think Loving was wrongly-decided, but I would not have joined Part II of that opinion, and would prefer to circumscribe the reach of such analyses.

Madison Man -- Why? Why is it so important to acknowledge what actually exists?

Is this what the civil rights battle means in 2006? We're not trying to change things. We're just decribing them accurately. Is it acknowledgement or something substantive that gay advocates want? Is it the right to freely marry or is it some sick need to be MAKE people accept you? LOOK AT ME! LOOK AT ME! I'M MARRIED TO SOMEONE OF MY OWN GENDER! I DEMAND THAT YOU LOOK AT ME!

Marghlar,I recognize that there are fairly mature lines of precedent going in the other direction, and I'm not really one of the "stare decisis is fo' suckas" crowd, but I tend to think that just because the court has been wrong for some time, and just because it would be deeply unwise to suddenly snap back to the right way to do things, that doesn't mean we can't generlaly head back in the direction of reconnecting with the text. When you say that "[a]ll of which is irrelevant to the gay marriage question, there being no presently established broadly recognized right to a gay union," I assume that you can see, though, why to someone who doesn't think there's a right to any kind of marriage in the Constitution, that a fortiori, there's not a right to gay marriage there.

MadisonMan:"I heard this morning that one reason Feingold was miffed was that the hearings he stalked out of weren't televised. I'm guessing he wanted each Senator's words potentially beamed to the general public."

I don't think it's all a question of LookAtMe LookAtMe LookAtMe, for what it's worth. Or even acceptance. Just a matter of leveling, so benefits flow equally to people who marry (legally) the one person they love.

Geoduck:Let's say the British King forbade marriage to everyone but a few nobles.

Just what form would that take? I suppose, as head of the Church of England, he could order them to alter that list of persons you are permitted to marry, so that commoners were excluded, but . . . so what? Would that prevent common law marriages? Would that prevent private, quasi-pagan ceremonies? Or prevent Catholics and other minority sects from marrying people in their own churches?

The issues with a Royal ban on commoner marriage all arise, as far as I can see, out of religious tolerance issues (i.e. the King's willingness to suppress marriages whether they have legal impact or not, analogous to his more general willingness to stamp out heresy) rather than anything intrinsic to a legal formula for marriage.

I don't think a ban on legal recognition of commoner marriages produces massive opposition in and of itself -- it's only if combined with the tools developed to root out heresy that it seems problematic to me.

More generally, as I have always tried to argue on this issue, it is unhelpful to conflate marriage with legal recognition of marriage -- these are two distinct things, and confusing them only clouds the issues.

"it is unhelpful to conflate marriage with legal recognition of marriage"

Balfegor is a wonderful diplomat, with a kind and generous temperament.

But, actually, it is stupid, wrong, and intellectually negligent to conflate marriage with legal recognition of marriage. Anyone who applies a remedial level of nuance to the issue can see that the institution of marriage is fine. It's the legal recognition that has everyone riled up, and to push this issue is only going to make things worse for gays who marry.

Seven: What benefit of marriage are gay people who have a wedding ceremony currently not getting that with a minor amount of tax and estate planning they could not otherwise obtain?

Access to health insurance through your spouse's employer (Many large employers offer domestic partner coverage but small employers who would offer such coverage generally aren't self-insured and can't find an insurance company that will offer such coverage to employers with less than 50 plan participants)

Immigration rights (I could get UK citizenship through my partner but he can't get citizenship here through me)

Pretax payment of health insurance premiums (Even when employers allow domestic partners coverage under their plans, the employee has to pay income tax on value of coverage of the domestic partner)

Marital privilege in court testimony

Married couples can file for bankruptcy jointly and claim twice as much equity in their home as two unmarried cohabitants

These are just a few obstacles that gay couples face that contracts can't get around. I'm tired of the just-plain-wrong argument that gay couples can get all the benefits of marriage without getting married.

Tax and estate planning is free to married couples who can rely on the default rules that come with marriage. In a country where 60% of people die without a will, its naive to assume gay people are just especially lazy or cheap because they don't hire lawyers and financial advisers to make sure they get the financial benefits of marriage.

Geez, Joseph, I hadn't realized it was so bad. I didn't know the systematic bigotry you face is on a par with Jim Crow, or slavery itself.

Let's just go through the awful miscarriages of justice you face:

1. "Access to health insurance through your spouse's employer." Perhaps you can find your own insurance. I love these healthcare arguments, by the way. To the leftist, it's as if all the rights earned against government for the last several millenia are meaningless because you can't go see a doctor for free.

Here's some free legal advice: write a simple contract with your spouse saying that, in the event of death, you agree to have the laws that apply to married people apply to you. And as for miniscule differences in tax treatment, cry me a river! The same people who want the State's seal of approval for gay marriage generally want higher taxes. So many are just getting their wish.

I'm confused since some people claim they don't have any problem with legal recognition of gay unions as such just don't use that precious religious word 'marriage'.

Now, Seven Machos is saying that gays can already get married, so why do they want legal recognition.

(this is called a double bind, no matter what you do you're going to piss someone off)

I actually almost agree with Senor Machos. The realities of gay marriage are mostly already here. Gay couples can (at present) even in the reddest states openly cohabitate and live in what is essentially common law marriages and can hold ceremonies of various kinds solemnizing their unions. Stopping or reversing that trend is not possible (without pretty draconian measures that I hope no one here would support).

That said, these unions are of an ambiguous legal nature. Even if couples try to privately take care of some issues through lawyers there are still others that can't necessarily be taken care of that way.

Now that this has been hashed out a bit in the comments, I wonder if you'd tell us whether you really think there's some basis other than policy preference for declaring a winner in this exchange? I honestly see no objective ground for choosing between them on debating points. Do you think Mr, Feingold was wittier? That his remarks were more telling or more to the point? Do you think that the non-chairman in such an exchange wins the ties (even the scoreless ones)? I can usually guess at your unstated reasoning, but in this case I'm at a loss.

In the absence of some further illumination, I'm inclined to think that if Mr. Feingold really harbors presidential ambitions, then he lost the most in an exchange that did no credit to either man.

The government made me get a license to get married, yes, but I have seen no benefits from that license. I could have done all the things I have done without the license. It's a lot like a fishing license.

I would like to know more about the money issues you speak of. If all you can bring up is taxes: let me just tell you, and I know of what I spaek: if you could choose between Bush's tax cuts and suffering from the marriage penalty, take the tax cuts.

The same people who want the State's seal of approval for gay marriage generally want higher taxes. So many are just getting their wish.

I have no problem paying higher taxes (I do live in Wisconsin, after all!). My federal tax liability is ludicrously low -- maybe $200 a month. (My property tax, in comparison, is $650 a month!) I do have a problem if I pay a substantially higher tax bill than a person in the same situation as I.

By the way, it was my understanding that the wording of some state amendments (I realize this strays from the topic, oh well) precludes unmarrieds from entering into contracts that resemble those given by the state to the married. I could be wrong.

I didn't know the systematic bigotry you face is on a par with Jim Crow, or slavery itself.

Did I say bigotry? Did I say slavery? No. I answered your presumably good faith question as to whether there are legal benefits gay couples can't get without being legally married. There are many. You are free to think a three-month tourist visa is a good substitute for citizenship or that people don't and shouldn't rely on their spouse's health insurance or that thousands of dollars in taxes is "cry me a river" insignificant. But those are very real issues for real people and I doubt straight people would so eagerly give those benefits up.

If the benefits I listed are so insignificant, would you support eliminating those rights for married couples? Or is your position that gay people should not be entitled to the benefits of marriage? If the latter is true, then focus on why gay people shouldn't be married, not on the bogus claim that you can get all the benefits of marriage through contracts. No matter how much you denigrate the benefits of marriage, its just not true.

I like your idea for a contract that simply says the marriage laws should apply to us as a gay couple. I'll have to send mine to the IRS and INS and see how they back down.

Patrick said..."Now that this has been hashed out a bit in the comments, I wonder if you'd tell us whether you really think there's some basis other than policy preference for declaring a winner in this exchange?"

I think saying "good riddance" is too ugly. Feingold was justified in making a speech about rights and the Constitution. I can't tell how disrespectful he was to Specter, so I don't have all the info I need, but I think saying "good riddance" and trying to disqualify a legitimate speech as just an insulting lecture sounds wrong. Feingold's response "I've enjoyed your lecture, too, Mr. Chairman...See ya" seems relatively lighthanded and short. I agree it's a bit high-schooly, but it's a comparison with Specter, not with the perfect response. So I stand by my original judgment and say that I'd come out the same way even without my bias against the amendment.

Sonicfrog: I think we all know the 2-word expression Feingold wanted to say and couldn't. He wouldn't have sounded so childish if he'd just said it. (And I probably would have defended him, except that it would have made him seem mentally unbalanced.)

It is my position that gay people enjoy substantially all of the benefits of marriage but that they will be entitled to far fewer of the benefits of marriage if they continue to carp because a super-majority of Americans is viscerally opposed to acknowledging gay marriage through the legal process, and you yourself have as much as admitted that there is no great civil rights issue here. Do the deeply held moral views of 70 percent of the people simply NOT MATTER?

I don't mean to be snide. I try so hard not to be, but sometimes the urge is just to strong, as it is at this very moment: if the best you can come up with is a rarely used evidentiary device, health insurance premiums, and intending immigrants to the United States -- if that's the damages you seek to remedy -- then I am giddy for you.

Seven: I think the benefits stuff is important, but more important is the basic question of equal treatment.

Homosexuality is largely an immutable characteristic. I think it is wrong for the state to deny benefits to individuals on the basis of an immutable characteristic, absent a really really good reason for the state to discriminate.

If gay marriage is largely a reality, the state ought not to selectively deny benefits to a class of people on account of a status that is largely outside of their control. Especially when that group is a small minority that will always have difficulty protecting itself through the political process.

You are right that bigotry against gay people has never risen to the extreme heights that bigotry against black people has reached in this country. But that shouldn't obscure the basic point that equality is a really important value in our country, and one that should be the default rule.

Much of what you have said could have been said in response to Loving v. Virginia. It is true that a huge majority of Americans were hostile (on "moral" grounds) to interracial marriages. Should the remedy have been to end the criminalization, but forego the extension of state-sanctioned marriage, on the grounds that it was offensive to the public?

I think there needs to be a showing of more harm than offense, before such discrimination can properly flow from the state.

I really love having sex with my sister. I also love having sex with a cute Rottweiller I own, some things in my kitchen, 11 old ladies over there at the nursing home, four women from a polygamist Mormon sect, and a nine-year-old girl who simply idolizes me.

Which, if any, can I marry in the legal scheme that you deem appropriate? Why? Which of my proposed marriages does the state have a bona fide interest in either allowing of forbidding? If I cannot marry certain of these entities, please explain that, too.

Seven, your sexual escapades certainly are .... eclectic. That said, I think you'll find that most same sex couples that wish to marry do so for deeper emotional reasons than on wild crazy sex alone. Since when do people have to get married to have sex? That is, people (regardless of orientation) often enjoy sexual encounters with people they really don't want to marry which is a more emotional involvement.

But, if you really do have a deeper emotional commitment to tie the know with some of your sex partners, I'll give my take on:

(your) sister : Straight marriage between close blood relations is usually outlawed for genetic reasons (birth defects). I'll leave aside the question of how emotionally wise it is to eroticize sibling or other close kin relations.But if you're not biological siblings, then go ahead, that kind of arrangement happens frequently enough on Latin American telenovelas.

a cute Rottweiller : You can get married as soon as the Rottweiller can express consent in English (written or spoken is fine with me).

things in (your) kitchen : as above, you can marry your blender when it can say "I do" (and mean it).

11 old ladies over there at the nursing home, four women from a polygamist Mormon sect: (taking both these sets together) Polygamy (polygyny in this case) is a separate issue. I have no theoretical objections to polygamy, as long as all involved are adults and consenting. Polygamy would require extensive reworking of current marriage laws (much more than same sex marriage, at any rate) since it's usually not reciprocal. In most (all?) polygamous scenarios I know of, each of the 11 ladies would be married to you, but not too each other. This new polyamor thing can be either reciprocal or non-reciprocal I think.

a nine-year-old girl who simply idolizes (you) : minors are assumed to be unable to give consent, so she fits in the same category as the dog and the blender. Both [or more in the case of you and the nursing home ladies] parties who want to marry each other need to be able to express legal consent.

Polygamy poses some really serious problems for society, the most serious of which is angry, young, alienated males. It is also alarmingly inefficient, leading to less material wealth. There also tends to be an association between more polygamy and fewer social rights.

As far as my sister, your argument is geneaology, and amounts to an argument about public health. I can make the same argument about homosexuality. Gay people tend to have AIDS and other sexually transmitted diseases at a substantially higher rate than straight people. See, for an explanation, The Myth of Heterosexuyal AIDS, by Michael Fumento. This is simply a fact.

I would argue, in fact, that homosexuality, bestiality, and inbreeding are all strongly taboo for the same reason: they tend to cause vile disease in human beings. Does the State have an interest in regulating against these things, or, at least, not to condone them?

Also, it sounds like your big issue is, obviously, consent, and consent by an individual using her or his own free will appears to be important to you. This is highly intriguing. If individual consent is most important to you, why are you so concerned about the State's consent? I sincerely would think that a person making this argument would adopt a "don't tread on me" approach and advise gay couples serious commitment to ssay, "to hell with the state."

This they can do because, to go back to my original argument, no one will arrest them for it or make them live apart. If somehow the people of today who are making a big stink about this issue could go back in time to an African-American neighborhood in Mississippi in 1961, and they were to say, "in the future, things turn out much, much better for African-Americans than they are now but GAY PEOPLE SOMETIMES HAVE TROUBLE GETTING HEALTH INSURANCE THROUGH THEIR PARTNERS' EMPLOYERS" -- I think the time travelers would be laughed at for days.

First, honoring civil rights and liberties is not about determining whether you're being lynched and enslaved or not. To take your analogy to 1961 Mississippi, I bet if you went back to 1861 and told the black residents of the same town that in a hundred years, things would be a lot better, but whites and blacks still wouldn't be sharing public accommodations and schools, those time travelers would probably be laughed at too. Society's concern for equal rights and treatment will never and should never end. There will not be a day when everything is perfectly fair and just. We constantly push and pull and struggle with how to give everyone equal treatment and opportunity without regard to their immutable characteristics.

Homosexuality did not cause AIDS and other diseases. Promiscuity and unsafe sex practices cause STDs to spread. Africa, China, India, the U.S. black population are not ravaged by AIDS because they have such large numbers of gay people among them.

And how is denying marriage rights to same sex couples supposed to stop the spread of disease? Do you really think gay people are going to have less promiscuous sex because they can't get married? Encouraging same sex couples to form long-lasting monogamous relationships would, if anything, slow the spread of disease within the gay community.

Now those are practical, situational concerns, some of which I share. Theoretically it doesn't have to be like that. Perhaps the polyamorists can make it work. I think two people is a delicate enough balancing act, but if people want to try in larger constellations, then so be it. Maybe along the way they can figure out what sort of (if any) legal protections would be useful.

"I would argue, in fact, that homosexuality, bestiality, and inbreeding are all strongly taboo for the same reason: they tend to cause vile disease in human beings."

And you'd be wrong. Inbreeding decreases diversity so that positive or negative characteristics tend to accumulate. More birth defects but also a good percentage of genetic winners (well known to animal breeders who cull the defects, something we can't do in humans).

Homosexuality like heterosexuality is primarily about emotional attachments. Physical ...erm... needs can be taken care of in lots of ways, but only some are emotionally fulfilling for any particular individual.Sexual acts can carry diseases (some more than others) and long term promiscuity is a _really_ bad idea for anyone. But this is independent of orientation.

I can't say I know of diseases passed by zoophilia apart from other kinds of nonsexual contact with animals, but I'll admit I've never given it much thought (try explaining that one to your doctor).

"I sincerely would think that a person making this argument would adopt a "don't tread on me" approach and advise gay couples serious commitment to say, "to hell with the state.""

You're making me wonder why straight couples (especially when one or both parties are libertarians) would want the state to intrude on their intimate lives. According to your reasoning, they can have ceremonies and live as married couples without those pesky marriage licenses. Why _do_ they bother then?

2. Will you please, PLEASE get it through your thick skull the point I'm making: NOBODY IS DENYING GAYS THE RIGHT TO MARRY.

Let's say there is a law that says that people have to have a license to fish a certain pond. There's no fine if you fish without a license, no punishment of any kind, and anyone wants to fish the pond does so. Is there any kind of a denial to fish in the pond?

My God. Why do gay people WANT to be regulated by the state? It's ludicrous. The more I read these posts, the clearer it becomes to me that this isn't about rights at all. It's purely psychological: YOU MUS OFFICIALLY ACCEPT AND CONDONE MY GAYNESS.

Michael -- The state is involved in heterosexual marriage (1) because it always has been; (2) because married couples tend to produce babies, which the State must deal with from time to time as they grow; and (3) because marriages are frequently stable environments for babies and the government has an interest in promoting these stable environments. Also, (4) a good government seeks to produce tranquiliy and smooth transfer of property and the very perpetuation of the State, and monogamous marriage is a good vehicle for these goals.

I am married. If my wife said to me, "Seven Machos, I don't want to have kids," I would be very likely to divorce her. I make no bones about this. To me, the only reason two people would ever get married is to have children. CERTAINLY, this is the only reason the State should be remotely involved.

Many people will find this abhorrent. But you can move in with one lover for the rest of your life, have big parties where you profess your love for each other, buy property together, get on the same health insurance plan -- you can do all of these things very simply and be very much in love.

Why do gay people feel the need to have the State endorse their relationship. And before you ask: YES, I would say the same thing about childless straight couples.

Seven: HIV is largely irrelevant, b/c a marriage license is not necessary for anyone to have anal sex. Rather, it is the state's recognition of a special bond between two people. Excluding gay people from that recognition discriminates against them, for no benefit that I can see. If anything, marriage is likely to reduce HIV transmission by increasing faithfulness and helping make partnerships more durable (both points arguable, I know, but a possible effect).

As for your above examples, I'm with Michael. Polygamous marriage is fine by me, as long as all parties give informed consent. Marrying a minor is not OK (I would in fact raise the age of marital consent to 18), because the minor can't give informed consent or have any kind of status of equality within the union. Such a marriage would be state sanction of pedophilia, which causes abudnant harm to its victims.

Same goes for the Rottweiler (although I don't think it would be harmed to the same extent as the child). You must have the capacity to contract to enter into a marriage.

Seven: I am married. Neither I nor my wife are sure that we want to have kids.

Is our marriage improper?

Should an infertile person be denied the right to marry?

And by the by, many gay couples can, and do, adopt children. Children who might otherwise be subject to the tender mercies of our foster care system. Shouldn't we stabilize those home environments as well?

But Marghlar: DUDE! Help me out, here. You are clearly laboring under the belief that a failure to endorse equals a denial. This just isn't true. I'm not sure what I can say to make you see that denying and not endorsing are totally different.

Your marriage is not improper. An infertile person should not be denied the right to marry.

With apologies to Michael, who is more wonderfully patient than I could ever be: NO ONE IS DENYING ANYONE THE RIGHT TO MARRY!

(Except me and my sister, my dog, and my appliances, but forget about that for now.)

To reiterate: No one, NO ONE, is issuing a denial or saying anything is improper. Do your thing and wail with it, man. The State should not be involved, except when it has to be, and it has to be when there are biological children.

Also: let's be honest here: anal sex is a lot more prevalent in sexual encounters involving two or more males.

One more thing, for Marghlar and those of you just getting in down here, I have no problem with gay marriage. Gayness is great. Gayness is wonderful. Gayness is fashioable. Gayness is hot.

I am arguing that the State should not endorse gay marriage. I have made a slew of arguments to show why this is the case, and why others (some 70 percent of the general population to judge from the results of popular referendums) might think it's the case.

My point is that it is improper for the state to confer recognition and benefits upon one class of marriages, but not upon another, when the distinction is based on an immutable or deeply rooted personal characteristic, ABSENT some significant harm being caused by the conduct not being so privileged.

Ergo: the State shouldn't prohibit people from being married because of their race, or their sexuality, or their religion, unless there is a very high probability of harm that necessarily flows from the relationship (and not from collateral factors that could be regulated in a more neutral way).

And regards anal sex: you are just being a bit weird here. Lots and lots of straight people have anal intercourse these days. Moreover, I really doubt that being married or not affects the likelihood that two gay men will get busy in this particular way. More likely, they have a preexisting sexual relationship long before they decide to get married. Ergo, the marriage decision has almost zero to do with the likelihood of disease transmission (except to lower it by encouraging monogamy).

The State should not be involved, except when it has to be, and it has to be when there are biological children.

Why only biological children? And why only children raised by straight couples? One effect, by the way, of the inability to get health insurance through one's same sex partner is that its a lot harder for one member of a same sex couple to stay home to raise a child, even when its the partner's biological child.

And you didn't clearly give any reaons why Marghlar should be able to claim the legal benefits of his childless straight marriage but a gay couple with kids should not be able to get the same benefits.

And what's up with the anal sex references? Sure, gay men (not lesbians) are more likely to engage in anal sex and more likely to have AIDS. But I still don't get your point. Are you suggesting that anal sex is much more common in Africa and the U.S. black community than in other populations? The state should deal with this by discouraging anal sex by denying gay male couples the right to the legal benefits of marriage (but presumably encourage lesbians to marry each other)?

And I don't get your distinction between failure to endorse and denial where the consequence of failure to endorse is denial of benefits.

And Seven, your referendums have mostly passed in red states -- I doubt they'd be as successful in the most populous blue states, like Illinois or New York.

In California, the same-sex marriage ban is currently maintained only by Schwarzenegger's veto of new legislation.

Thus, the numbers you cite might not generalize as well as you claim they do. (Although I'd grant that there is probably a numerical majority opposed to gay marriage.)

I also think that, over time, those numbers are going to decline, as a matter of demographics. Younger people tend to be more receptive and tolerant of gay rights than older people, so given enough time, the majority might well hold a different view.

Support for the notion that age is a big determinant in views of same sex marriage.

And statistics showing that, depending on how the question is asked, 30-40% of Americans flat-out support same-sex marriage (higher than the number who support banning abortion). And when asked whether gay couples should be given the rights and benefits associated with marriage, half or more of Americans offer their support.